Objection

Clarence Darrow’s unfinished work.

The day the strikers’ wives pelted the scabs with rotten eggs and a strikebreaker and Irish ex-cop named Edward Casey cracked Jimmie Morris’s skull, the governor of Wisconsin called in the National Guard from Milwaukee. By the next morning, Friday, June 24, 1898, four companies of infantry, a battery of artillery, and a squadron of cavalry armed with rifles and Gatling guns had reached Sawdust City, also known as Oshkosh, where soldiers took up positions outside the gates of the Paine Lumber Company. The city and the company had been founded in 1853, when a man named Edward Paine arrived from Canisteo, New York. Now the place was run by his son, George. Even Oshkosh’s mayor was on George Paine’s payroll. By 1898, the two thousand German, Irish, Polish, and Danish immigrants who worked at Paine Lumber, the largest of Oshkosh’s two dozen sawmills, were turning out four hundred thousand doors a year, making Oshkosh, population twenty-eight thousand, the door capital of the world.

Jimmie Morris, who was sixteen, had been supporting his mother and six younger brothers and sisters ever since his father was maimed at a mill. He earned forty-five cents a day. The factory doors, Paine doors, were locked once the workers got in, at 6:45 A.M., and kept locked, except for a lunch break, until the guards came and turned the key, when dusk fell. “Why, gentlemen,” Clarence Darrow said to the jury, when the leaders of the strike were brought to trial, “the only difference that I can see between the state prison and George M. Paine’s factory is that Paine’s men are not allowed to sleep on the premises.”

The trouble had started that May, after workers sent Paine a letter demanding better wages, a weekly payday, the end of woman and child labor, and recognition of their union. Thomas Kidd, thirty-eight, the general secretary of the Amalgamated Woodworkers International, came from the union’s headquarters, in Chicago, to organize. Paine had been replacing men with women and children; by that spring, children made up a quarter of his workforce. Not a few had taken jobs once held by their fathers. Paine threw the letter in the wastebasket; he said he found it “unbusinesslike.” Some sixteen hundred workers went on strike. “Oshkosh is in the hands of a mob,” the mayor said. The sheriff deputized dozens of men as strikebreakers. After the Civil War, National Guard units had been formed, in Northern states, to deal with labor unrest; they were funded, in part, by donations from businessmen. But in Oshkosh the guardsmen turned out to be sympathetic with the strikers, and after less than a week the mayor sent them back to Milwaukee. The mills were closed.

Thirteen hundred citizens of Oshkosh attended Morris’s funeral. The next day, the district attorney, Walter W. Quartermass, launched an investigation into the strike, and that’s what broke it. The mills reopened on August 3rd. Casey, the ex-cop, was indicted for murder. (He was later acquitted.) Kidd was charged with leading a conspiracy to destroy George Paine’s business. The State of Wisconsin had come up with an argument by which Kidd could be convicted as a criminal: there is no right to strike.

The trial was “watched all over the country as a test case,” the Milwaukee Sentinel reported. Quartermass brought in a special prosecutor, F. W. Houghton, one of the men who had volunteered their services to the sheriff. That summer, Houghton had made a series of speeches to an ad-hoc law-and-order league. When Paine appeared in court, he sat not with the crowd but in front, next to Houghton, who warmly shook his hand. Darrow, up from Chicago to defend Thomas Kidd, sat across the aisle. His best trick was to turn a defense into a prosecution. He said he would pursue Paine to the ends of the earth; he wanted to be wherever Paine was, until the day they both died, and then, by God, he wanted to be where Paine was not.

Darrow, who is not only American history’s best-known trial lawyer but also its most famous skeptic, is the subject of two new biographies, neither of which is as fun to read as Darrow, but one of which is better than the other. In “Clarence Darrow: American Iconoclast,” Andrew E. Kersten observes that Darrow “was dedicated to smashing the structures and systems of social control that impinged on the liberties and freedoms of average people and that caged their aspirations,” and he regrets, as have many before, that Darrow was not a “systematic thinker.” You want to count on Darrow, but you can’t. He sounds better than he was. He betrayed people all the time. He was terrible to women. His political philosophy was amateur, and jury-rigged. John A. Farrell, in “Clarence Darrow: Attorney for the Damned,” goes farther into the archives and deeper into Darrow’s crags, to offer this: “He did not believe in free will, nor good and evil, nor choice. There were no moral absolutes, no truth, and no justice. There was only mercy.” You can count on that.

Darrow played a role in some two thousand trials. In more than a third of those cases, he was paid nothing. The only case he ever volunteered for is also the one that secured his lasting fame (and gained Spencer Tracy an Oscar nomination, for portraying him in “Inherit the Wind”): defending John Scopes, charged by the State of Tennessee with the crime of teaching evolution. “The sharpshooters of bigotry” were picking off teachers who cared about ideas, Darrow believed. “I knew that education was in danger from the source that has always hampered it—religious fanaticism.”

More typically, Darrow was sought out. “By no effort of mine,” he wrote, looking back on his life, “the distressed and harassed and pursued came fleeing to my office door.” He defended a hundred and two men who were facing the death penalty, and not one was executed, which is good, because, if one had been, Darrow thought he might not survive it. “It would almost, if not quite, kill me,” he said. “I had a strongly emotional nature which has caused me boundless joy and infinite pain. I had a vivid imagination. Not only could I put myself in the other person’s place but I could not avoid doing so. My sympathies always went out to the weak, the suffering, and the poor. Realizing their sorrows I tried to relieve them in order that I myself might be relieved.” Sometimes, there is honesty in modesty even as false as that.

Darrow wasn’t a philosopher; he wasn’t even an iconoclast. He was an agonist. He would argue one way; he would argue another; he just didn’t want to see bigotry thrive or watch a man die. He liked to say that creeds were dope: “No one can find life tolerable without dope. The Catholics are right, the Christian Scientists are right, the Methodists are right, the drunkards are right.” He thought his own dope was pessimism. It wasn’t. His dope was compassion. He despaired for humanity mainly because he didn’t meet many of his kind of addict. The problem is, you can’t teach sympathy; like imagination, either you have it or you don’t.

Clarence Seward Darrow was born in Farmdale, Ohio, in 1857. “I have been told that I come from a very old family” is how he began his autobiography. “A considerable number of people say that it runs back to Adam and Eve.” He lifted that from Dickens’s “Martin Chuzzlewit.” Everything he read, he used.

Darrow’s father, Amirus, was a woodworker and an undertaker. He made furniture and he made coffins, which is one reason that Darrow was so helplessly obsessed with death. Amirus was also, as Darrow put it, “the village infidel.” Darrow’s parents read Jefferson, Voltaire, and Rousseau. They were abolitionists; their house was a stop on the Underground Railroad. Clarence got his middle name from William H. Seward, a radical Republican who went on to become Lincoln’s Secretary of State.

Kersten skips over Darrow’s childhood, arguing that earlier biographers have made too much of it, by which he means, chiefly, Irving Stone. In a swashbuckling book published in 1941, Stone stressed the influence of Darrow’s boyhood on his character: “Many a midnight the boy had been awakened to ride to the next village on top of a load of hay that concealed an escaping Negro slave.” Many a later lawyer was stirred by Stone. Like many popular biographers, he was a fabulist. He had John Brown patting little five-year-old Clarence on the head; Brown was hanged in 1859, when Clarence was two.

But Darrow himself made much of his early years, and when a fellow does that a biographer has to hearken. “Since I was a child I have never changed my mind,” Darrow wrote in “Farmington” (1904), a barely fictionalized autobiographical novel. Darrow always attributed his skeptical cast of mind to his father, who taught him “that doubt was the beginning of wisdom.” Amirus also told his son the story of how, when he was eight years old, his father had made him watch a hanging, and how he had never forgotten how it felt to know that, just by watching, and not speaking up, you had helped kill a man.

Darrow was tall and sure-footed, a fine first baseman. (“I once thought that when the time should come that I could no longer play ball there would be nothing left in life.”) He knew the smell of sawdust. He was cursed with a whittler’s itch; in the city, he learned to scratch it by doing crossword puzzles. How did he come to be a lawyer? “We lived across the street from a tin-shop, and the tinner was the justice of the peace.” He liked to go over there, and watch the trials. “I enjoyed the way the pettifoggers abused each other.” After a stretch as a student at Allegheny College, Darrow taught school for three years, studying law books at night. He then went, for just a year, to the University of Michigan.

“The law is a bum profession, as generally practiced,” he wrote. “It is utterly devoid of idealism and almost poverty stricken as to any real ideas.” Darrow was, at heart, a teacher. He used the law to teach one idea, and then another, but the idea he was really hoping to impart was doubt.

He passed the bar, married a sawmill owner’s daughter named Jessie Ohl, and joined a practice in Andover, Ohio, ten miles from where he grew up. He might have been a small-town pettifogger till the end of his days except that, in 1887, he read Henry George’s “Progress and Poverty.” At the time, the richest one per cent of Americans owned fifty-one per cent of the nation’s wealth. (Today, that number is thirty-five per cent.) He also read John Altgeld’s “Our Penal Machinery and Its Victims,” and decided to move to Chicago, partly to meet Altgeld, who was then a superior-court judge. Darrow helped Altgeld campaign, successfully, for governor, and took a job as a lawyer for the Chicago & Northwestern Railway. He earned a reputation as a speaker. He met Henry George, on the lecture circuit, but his passion for George’s single-tax solution waned: “The error I found in the philosophy of Henry George was its cocksureness, its simplicity, and the small value that it placed on the selfish motives of men.”

In 1894, Darrow quit working for the railroad to defend the president of the American Railway Union, Eugene V. Debs—“the bravest man I ever knew”—who was charged in connection with his role in the Pullman strike. Between 1881 and 1894, there had been, on average, one major railroad strike a week. In the Gilded Age, labor was generally, and sometimes literally, crushed. In a single year, more than twenty thousand railroad workers were injured on the job and nearly two thousand killed. At the onset of the Panic of 1893, the Pullman Company cut wages an average of twenty-eight per cent; the next year, workers in Chicago went on strike. Over the objections of Governor Altgeld, President Grover Cleveland ordered U.S. troops to Illinois. When the troops came, riots broke out and the U.S. Attorney General issued a blanket injunction, ordering the strikers back to work. After ignoring the injunction, Debs was convicted of contempt of court and sentenced to six months.

Although Darrow’s defense of Debs was unsuccessful, it brought him enough attention so that, two years later, he ran for Congress. Altgeld was up for reëlection, and he and Darrow campaigned on behalf of the Nebraska congressman William Jennings Bryan, who won the Democratic Presidential nomination after giving a Convention speech in which he placed upon his head an imaginary crown of thorns, a martyr to country and party. The New York Times called Bryan an “irresponsible, unregulated, ignorant, prejudiced, pathetically honest and enthusiastic crank.” In Illinois, the whole Democratic ticket lost. Darrow blamed Bryan, who lost the Presidency. Altgeld, no longer governor, joined Darrow’s law practice. And Darrow, who had grown restless—politically, intellectually, and in other ways, too—became a convert to free love, and divorced his wife. To make the divorce stick, he needed to get out of town for a while. He made a deal with the Amalgamated Woodworkers: he would defend Kidd for two hundred and fifty dollars, so long as the union agreed to publish Darrow’s closing argument. He had a pretty fair idea what he wanted to say about what men like George M. Paine were doing to the people who worked in the mills. He took a train north, skirting the western shore of Lake Michigan, to Milwaukee, and then boarded a railway car heading along a spur, northwest, to a town not much older than he, on the shores of Lake Winnebago.

Wisconsin v. Kidd was called to order in Oshkosh Municipal Court on Friday, October 14, 1898. George Zentner, a picket captain, and Michael Troiber, a picketer, were also charged in the conspiracy. Both had worked for Paine; both were immigrants, as were four out of five people living in Oshkosh, which was, at the time, the second-largest city in Wisconsin. Oshkosh’s paper of record, the Daily Northwestern, declared the case “second only to the trial of Eugene V. Debs” in national importance. Darrow went further. This trial, he said, was part of “the great battle for human liberty, a battle which was commenced when the tyranny and oppression of man first caused him to impose upon his fellows and which will not end so long as the children of one father shall be compelled to toil to support the children of another in luxury and ease.” In American history, there have been few more skilled orators.

“Most jury trials are contests between the rich and poor,” Darrow wrote in a 1936 essay called “How to Pick a Jury.” Jury selection took four days. The trick, he advised, is to find, for each seat, a man so likely to identify with your client that, “really, he is trying himself.” And so: “If a Presbyterian enters the jury box and carefully rolls up his umbrella, and calmly and critically sits down, let him go. He is cold as the grave.”

In Oshkosh, the Honorable Arthur Goss was having none of it; he ruled against Darrow’s effort to expand his number of peremptory challenges. Next, Darrow objected to Houghton, on the ground that he was a prejudiced party. Then Houghton objected to Darrow, on the ground that he wasn’t from Wisconsin. Both objections were overruled.

Opening arguments took two days. The state had to prove that Kidd had instigated the strike; the defense that he had not. The prosecution called strikers who testified that Kidd had been at their meetings. Quartermass read a speech that Kidd had made. Houghton called Paine to the stand. Paine said his plant was worth a million dollars, and that the strike had cost him twenty-five thousand dollars.

On cross-examination, Darrow got Paine to admit that he had tried to persuade a judge to file an injunction against Kidd, but that no judge would do so. He implied that Paine had also attempted to bribe Kidd. He began building an argument that the only reason this case had gone to trial was that Paine wanted it to. He was also trying to establish that the point of a strike wasn’t to damage anyone’s business; it was to relieve suffering. He asked Paine if he employed girls at the mill. Paine said yes. “What do those girls do?” Darrow asked. “Ah,” Paine replied. “Those girls take little bits of sticks and saw them up on little saws.”

These saws, which cut doors and deprived men of their limbs, were playthings? Here, one supposes, Darrow scratched his head, something he did to suggest that someone had just spoken nonsense. (One reporter observed, “The scratch behind the ear, however, apparently has no purpose whatsoever.”) When the state rested, on Tuesday, October 25th, the defense moved that all charges be dismissed: this wasn’t a criminal case; this was an act of malice. The motion was denied.

Darrow began his defense by calling Kidd, who testified that Paine employed children and that the wages he paid grown men averaged between eighty-five and ninety cents a day, “a lower rate than paid in any city in the United States.” The state objected; this was hearsay. Darrow asked Kidd about the speech he had made. Kidd said, “At no time nor place have I advised violence in carrying out the strike.” Darrow called the district attorney to the stand, a favorite ploy. Hadn’t workers complained to you before, he asked, that Paine was breaking the law, in hiring children under the age of fifteen? Quartermass admitted as much. When the matter of how much these children were paid came up, Houghton replied, “I wish I could have been able to get as much when I was a child of their age.” I do believe that the attorney for the defense scratched his head.

“The case all through has been closely fought,” the Daily Northwestern reported, and the battles between Houghton and Darrow were “very spicy.” But Darrow’s main line of defense had been thwarted. He intended to prove the existence of a conspiracy led by Paine, but Goss ruled all the relevant evidence inadmissible. Houghton had called sixty-two witnesses; Darrow called only twenty-five.

Then came closing statements. “An actor may fumble his lines,” Darrow once wrote, “but a lawyer needs to be letter-perfect.” He spoke, as he always did, without notes.

Clarence Darrow wore baggy pants and a string tie. His shoulders were so wide that he had his shirts specially made. He moved like a bull. He slicked his hair down, which didn’t stop it from being unruly. He looked more like an underslept pettifogger than like a big-city lawyer. He liked to play dumb, “as if he were no lawyer at all, but a cracker-barrel philosopher groping for a bit of human truth,” as Ben Hecht put it. He would “crack his suspenders like the explosion of a .45,” a Chicago newspaperman said. “I used to think he’d break a rib.”

This is a trial for conspiracy, Darrow told the jury, and here indeed was “a conspiracy, dark and damnable”: “Somebody is guilty of one of the foulest conspiracies that ever disgraced a free nation.” But Thomas I. Kidd had nothing to do with it. “Back of all this prosecution is the effort on the part of George M. Paine to wipe these labor organizations out of existence, and you know it.” Crack the suspenders. “That’s all there is to it.”

Darrow took his time. He began with Paine. Paine had persuaded Quartermass to file charges; he had used his influence to have Houghton appointed special counsel. The trial was his doing. He had bent to his will the great state of Wisconsin. “After he gets through with it,” Darrow told the jury, “I hope he will pass it back to you.” Paine could go to hell. The men, women, and children who worked in his mill were already there. Take a man like Michael Troiber. He had come to Oshkosh, “as thousands of others have come from all nations of this earth, to lend his brawn and muscle and life to the building up of this great land—and he worked for ninety cents a day until he grew old and stunted and haggard and worn, and thought he had a right to demand something more; and then George M. Paine conspired to lock him up in jail: and he hired these lawyers as bloodhounds to bay him inside the doors.”

Past that, Darrow told the jury, he did not give a fig about the facts in this case. Did Troiber hit a man who tried to cross the picket line? “I do not know,” Darrow said. “I do not care.” Were the children who worked at Paine’s fifteen, or younger? “I do not care. It is a disgrace to the civilization in which we live that they were there at all.” Had the woodworkers dared to form a union? Yes, but “I do not care.” Did Kidd urge them to strike? No, but Darrow didn’t care. The fourteen weeks that the strike lasted were peaceable, with not enough excitement “to make up one decent Fourth of July celebration.” There had been that riot, yes, and that poor boy, Jimmie Morris, had got his skull cracked. Who was to blame for that? “I do not know,” Darrow said. “I do not care.” Here’s what he did know: Kidd was a saint. “If I had been here to conduct this strike instead of Kidd,” he told the jury, “the men would not have been so gentlemanly and orderly, let me tell you that.”

As to the most damning evidence: Did Kidd make the speech that was read in court, and made to sound so sinister? Yes, and the son of a carpenter once made a speech just like that to some fishermen in Judea. Come to think of it, that speech was just like a letter in a Dickens story: “Dear Madam—I will be home at 7. Chops and tomato sauce.” After Mr. Pickwick wrote that note to his landlady, she brought him to court for breach of promise. And a lawyer “who practiced law in London then,” Darrow told the jury, “but who has moved to Oshkosh since, brought out that letter and he read it to the jury and he said, ‘Gentlemen of the jury, “Chops and tomato sauce.” Gentlemen of the jury, what is the meaning of those words, “chops and tomato sauce”? Gentlemen of the jury, are a widow’s affections to be trifled away by chops and tomato sauce?’ ” Kidd uttered the words “fellow-citizens,” and Houghton called him a socialist. Chops, gentlemen, and tomato sauce.

No, Darrow didn’t care about the facts; nor, for that matter, did he care about the case. He cared only about one question: “Whether when a body of men desiring to benefit their condition, and the condition of their fellow men, shall strike, whether those men can be sent to jail.”

And then Darrow said to the jury, “I know that you will render a verdict in this case which will be a milestone in the history of the world, and an inspiration and hope to the dumb, despairing millions whose fate is in your hands.” He had spoken for eight hours.

The Kidd trial may not have been a milestone in the history of the world, but it was a landmark in the Gilded Age debate about prosperity and equality. There were two ways of looking at what Darrow called “the great questions that are agitating the world today.” Either wealthy businessmen like Paine and Pullman were ushering in prosperity for all or else the interests of the Paines and the Pullmans of the world were at odds with everyone else’s interests. In Oshkosh, Darrow won that argument. The jury was out for fifty minutes. All three defendants were acquitted.

Darrow went on to serve as labor’s leading lawyer. In 1903, the year he married the journalist Ruby Hamerstrom, he represented the United Mine Workers in Pennsylvania, in arbitration. “Five hundred dollars a year is a big price for taking your life and your limbs in your hand and going down into the earth to dig up coal to make somebody else rich.” While Darrow spoke, the chair of the arbitration commission had to beg the audience to stop applauding. The miners got their raise, and back pay to boot. Six years later, in the first trial covered by wire services, he defended Big Bill Haywood, the secretary of the Western Federation of Miners, who was accused, on trumped-up charges, of playing a role in the murder of a former governor of Idaho. “Oh, gentlemen, do not think for a moment that if you hang him you will crucify the labor movement of the world,” Darrow told the jury. “Do not think that you will kill the hopes and aspirations and the desires of the weak and the poor.” Haywood was acquitted.

In 1910, Darrow agreed to defend the McNamara brothers, to be hanged if convicted of bombing the Los Angeles Times building. The Times was anti-labor. Twenty-one people died in the bombing. At the time Darrow took the case, he was twenty-five thousand dollars in debt, supporting a wife and an ex-wife, and carrying on with at least one mistress. When he realized that his clients were guilty, he changed their plea, but not before the district attorney discovered that an investigator hired by Darrow had attempted to bribe two jurors. Darrow was indicted and tried, twice. In the first trial, he was found not guilty; the second resulted in a hung jury. Darrow always maintained his innocence or, more shiftily, his blamelessness: “My conscience refuses to reproach me.”

After that, Darrow left the labor movement. He went on to do his best work, speaking and writing against fundamentalism, eugenics, the death penalty, and Jim Crow. “America seems to have an epidemic of intolerance,” he wrote. That’s still true. And the Gilded Age debate about the right to strike did not end in Sawdust City; a century later, it’s still going on. Just this past March, Scott Walker, the Republican governor of Wisconsin, signed a law making public-sector collective bargaining a crime.

“Gentlemen, the world is dark,” Darrow told that jury in Oshkosh, “but it is not hopeless.” After all, no attorney for the damned ever lacks for work. ♦

Jill Lepore, a staff writer, has been contributing to The New Yorker since 2005.